Home » Alabama Plans to Carry Out the First Execution Using Nitrogen Gas. A Lot Could Go Wrong.

Alabama Plans to Carry Out the First Execution Using Nitrogen Gas. A Lot Could Go Wrong.

The first time Jeff Rieber said goodbye to his longtime friend Kenneth Eugene Smith, the two men hugged and cried, their embrace inhibited by Smith’s handcuffs. The pair had spent roughly 30 years together on Alabama’s death row at Holman Correctional Facility in Atmore, first bonding over their interest in the law and love of rock ‘n’ roll, then learning each other’s secrets and weaknesses and sharing the connection that came with witnessing more than 50 of their neighbors taken to the death chamber. But friends on the row came with an expiration date, and Smith’s had arrived.

As Smith’s execution began that evening in November 2022, the building shook as Rieber and his neighbors banged on the steel doors of their cells, a tradition meant to show solidarity. It usually took a while for news of an execution’s outcome to reach death row. Sometimes that came in the form of watching a body being loaded into a coroner’s vehicle. Smith, however, left the death chamber alive. Officials had called off his execution.

“I was blown away,” Rieber told The Intercept in a telephone interview. The celebration that erupted on death row soon turned to anger as they learned that executioners had stuck Smith with needles for two hours as they tried, and failed, to establish IV access to deliver lethal drugs. Smith was the second person in Alabama that year, and the third in four years, to survive execution because of problems finding a vein. Smith is “universally loved” on death row, Rieber said, and his neighbors were upset about what happened. “There was a lot of anger, a lot of unrest, a lot of tension. And the tension is building again.”

Alabama is slated to execute Smith on January 25. This time, the state is planning to suffocate him with nitrogen gas, an untested method that has never been used in an execution. Experts retained by Smith’s lawyers have warned that Alabama’s protocol could cause Smith to suffer a stroke, choke to death on vomit, or be left in a vegetative state.

The Alabama Department of Corrections, or ADOC, is planning to administer the gas through a hose hooked up to a respirator mask, but the state has kept many of the specifics a secret. “Within seconds, Smith will have no available oxygen to breathe inside the mask,” a court document filed last month by the office of Attorney General Steve Marshall stated. “That will render him unconscious and cause death.”

“Alabama has chosen to pick somebody they just tortured to use as a guinea pig for a brand-new method.”

In the face of the unknown, the state has offered little scientific evidence or expertise to assuage concerns, primarily relying on internal tests to ensure the system will work as planned. Smith’s lawyers, who are challenging the execution method, have accused the department of flouting safety guidelines and ignoring warnings from an expert in assisted suicide about the unreliability of the equipment they intend to use. In depositions, ADOC officials have acknowledged foregoing medical advice that could protect against problems arising during the execution.

Rieber likened Smith’s execution to a science experiment. “Alabama has chosen to pick somebody they just tortured to use as a guinea pig for a brand-new method because the one they used before didn’t work,” he said.

Alabama’s lethal injection chamber at Holman Correctional Facility in Atmore, Ala., on Oct. 7, 2002.

Photo: Dave Martin/AP

Smith was sentenced to death for his role in a 1988 murder-for-hire plot. Charles Sennett, a minister in the Church of Christ, recruited Smith and John Forrest Parker to kill his wife, Elizabeth, at their home in northwestern Alabama. The pair were paid $900 each, court documents show. Sennett died by suicide a week after the killing. Parker was sentenced to death and executed in 2010.

Smith was convicted of capital murder in 1989, but the courts ordered that his case be retried because the prosecution had illegally struck Black jurors. At his second trial, in 1996, the jury voted 11-1 to spare Smith’s life and sentence him to life without parole. Because judicial override was legal in Alabama until 2017, however, the judge was able to quash the jury’s recommendation and sentence him to death.

Alabama’s first attempt to carry out Smith’s death sentence was part of a string of botched executions in the state. Executioners jabbed needles in Smith’s arms and hands, according to a filing by his lawyers, then tilted the gurney in an “inverse crucifixion position.” They injected him with an “unknown substance” believed to be a sedative or anesthetic, the lawyers wrote, arguing that the execution subjected Smith to cruel and unusual punishment. The state denied placing Smith in this position or administering a sedative, which would run afoul of official policy. An executioner proceeded to use a large needle to try to establish IV access in Smith’s collarbone. The experience left Smith with “severe physical pain and emotional trauma,” he wrote in an affidavit.

Alabama lawmakers authorized nitrogen hypoxia as an execution method in 2018 after legal challenges alleging that condemned people had remained awake during painful lethal injections held up the state’s ability to carry out death sentences. The move followed the passage of similar bills in Oklahoma and Mississippi. Former Oklahoma Rep. Mike Christian asked his legislature to adopt the method after watching the BBC documentary “How to Kill a Human Being,” which followed a British Parliament member-turned-journalist in his search for the perfect execution method. “It’s foolproof,” Christian said of nitrogen hypoxia.

The method works by depriving the brain of oxygen and replacing it with nitrogen, an odorless gas that makes up 78 percent of the earth’s atmosphere but is lethal when inhaled on its own. Nitrogen poisoning has killed nearly 100 people since 1992 in accidents at industrial plants, laboratories, and medical facilities. Since introducing nitrogen hypoxia as an execution method, however, neither Oklahoma nor Mississippi has come up with a way to carry it out. Oklahoma has reverted to lethal injection.

ADOC released a heavily redacted protocol last summer that detailed how it would carry out Smith’s execution.

The execution team will strap the mask on Smith’s face and monitor his oxygen levels with a pulse oximeter. Smith will pray and deliver his final statement with the mask on, according to the protocol. Officials then plan to administer nitrogen gas for either 15 minutes or five minutes after a flat line shows that Smith’s heart has stopped beating.

Not much is known about the architects of ADOC’s plans. Officials have been tight-lipped about the manufacturer of the system, making it difficult to evaluate its efficacy. They have also kept the nitrogen supplier a secret, although the gas is widely available for purchase. The state has entered into publicly available contracts with just two companies related to the use of nitrogen gas, and both have denied creating the protocol.

In 2019, officials hired FDR Safety, a workplace safety consultancy in Tennessee, to “research process methods,” “conduct task-based risk assessment,” “develop job instructions including safety requirements,” and “conduct hazard communication training.” The company terminated its contract in 2022 after pressure from anti-death penalty activists. Alabama refused to disclose its contract with FDR Safety or any reports the company drafted. Chief Operating Officer Steve Hawkins has maintained that his employees did not work on the execution protocol.

“The work that FDR Safety performed was limited to protecting the health and safety of the guards who work for the Alabama Department of Corrections,” Hawkins said in a statement at the time. “It was in no way associated directly with the protocols used to administer capital punishment.

Officials also tapped Daniel Buffington, a Florida pharmacist and founder of the drug consulting firm Clinical Pharmacology Services, to consult on nitrogen gas. An investigation we conducted for ProPublica found that Buffington made at least $354,000 testifying in favor of states’ lethal injection protocols between 2015 and 2023 and that his testimony “seemed to be exaggerating or misrepresenting the scope of what he could do as a licensed pharmacist.” (Buffington contested the investigation’s findings.)

In a 2022 interview, Buffington told us that he was asked by Alabama to answer questions “for a very brief period of time … about the pharmacology of the substances.” He said he did not perform any work on the state’s protocol.

The attorney general’s office and ADOC did not respond to questions from The Intercept about the development of the execution protocol.

The sun sets behind Holman Prison in Atmore, Ala., on Thursday, Jan., 27, 2022, as the U.S. Supreme Court considered whether to allow the execution of death row inmate Matthew Reeves, convicted of killing a man during a robbery in 1996. (AP Photo/Jay Reeves)

The Holman Correctional Facility in Atmore, Ala., on Jan. 27, 2022.

Photo: Jay Reeves/AP

As director of the assisted suicide organization Exit International, retired physician Philip Nitschke has spent more than two decades developing expertise in elective death procedures via lethal drugs, poisons, and gases like nitrogen, earning him the moniker “Dr. Death.”

Nitschke recently developed a euthanasia pod, an enclosed device that fills with nitrogen with the push of a button. But the way Alabama planned to conduct its nitrogen executions alarmed him. His work in the assisted suicide movement taught him that masks were ineffective, he said, because they failed to protect against leaks that could introduce outside oxygen. It was his opinion that the execution method would not bring about a “peaceful, reliable death.”

Facial hair could break the mask’s seal, Nitschke said, prolonging the process of dying even when people were fully cooperative. In other instances, facial muscles relaxed once unconsciousness kicked in, loosening the mask. In Alabama, Nitschke warned, these problems could prohibit enough nitrogen from reaching Smith and leave him in a vegetative state with permanent brain damage.

“Problems of mask fit, facial hair, and dynamic changes associated with alteration of the user’s facial and or muscle tone (as consciousness is lost or the person speaks) have been found to be unsolvable,” Nitschke, whom Smith’s team retained as an expert witness, wrote in a November court declaration. “The smallest air leak greatly increases the time to loss of consciousness and uncertainty regarding the outcome.”

Officials have dismissed those concerns. ADOC Commissioner John Hamm testified in a December deposition that he wasn’t aware that the mask needed to be airtight, a claim that Smith’s lawyers say contradicts the user manual.

Another doctor retained by Smith’s legal team warned that oxygen leaking into the mask could cause Smith to suffer a stroke or be left brain dead, which the state rejected as speculative. The doctor also said that Smith might vomit inside the mask, causing him to die by choking. Hamm said that his team considered that possibility but did not seek medical advice to mitigate the risk and will not intervene if Smith vomits once nitrogen starts flowing.

“If the person vomits while the nitrogen is engaged, we know that we cannot remove that mask,” ADOC Regional Director Cynthia Stewart confirmed in a December deposition.

“So you just let them sit there with the vomit in the mask?” Smith’s lawyer asked.

“They won’t know,” she replied. “They will be unconscious and probably deceased.”

Public documents show that officials have relied on state employees to conduct tests to ensure the protocol will work as intended.

After Nitschke laid out his initial concerns about Alabama’s protocol, Stewart wrote in an affidavit that she had “observed multiple persons wearing the mask with supplied breathing air, and none have reported any problems breathing.” She added, “I have also worn the mask under these conditions, and I was able to breathe comfortably.”

But the circumstances Stewart described would be drastically different than those during an execution, Smith’s lawyers argued, because the employees were breathing oxygen rather than nitrogen and were not experiencing the feelings associated with being executed. “Defendants’ evidence amounts to nothing more than their assurances that nothing will go wrong,” they wrote.

In an experiment conducted in August, ADOC officials placed the mask on top of sheets and a towel, according to a brief submitted by Smith’s legal team in December. An oxygen monitor was positioned beneath the mask to “document how quickly the oxygen decreased in the mask after the introduction of nitrogen,” a relevant metric to determine how quickly someone might become unconscious.

Dr. Joseph Antognini, a retired anesthesiologist who regularly testifies on behalf of states defending new execution methods, observed this demonstration and evaluated the nitrogen system at Holman. Antognini “did not find any issues related to how the air and nitrogen will be delivered,” Smith’s lawyers wrote, but he had limited experience administering gasses through a mask and did not evaluate how the mask would fit on Smith.

“I think that the trials effectively show very little at all, and I wouldn’t be drawing too much comfort from it.”

Nitschke said his fears about Alabama’s new method were confirmed when Smith’s lawyers invited him to Holman last month to evaluate the system for himself.

He was given the chance to replicate Smith’s experience up until the introduction of nitrogen. After climbing onto the execution gurney and having the mask strapped onto his head, it filled with oxygen, he told The Intercept. Nitschke discovered that by simply straining his jaw, he could displace the mask’s straps, a feature he said could introduce an oxygen leak.

Nitschke also said he was shown about a half dozen videos of tests that Alabama had conducted on the mask. He remained unconvinced that the execution would proceed as planned.

“I think that the trials effectively show very little at all, and I wouldn’t be drawing too much comfort from it,” he said. Referring to state officials, he added, “I’m surprised that they provide them with much comfort.”

Kenneth Eugene Smith pictured with his spiritual adviser, the Rev. Jeff Hood, on Jan. 22, 2024.

Kenneth Eugene Smith pictured with his spiritual adviser, the Rev. Jeff Hood, on Jan. 22, 2024.

Photo: Courtesy Jeff Hood

Smith’s lawyers are continuing to challenge the state’s use of nitrogen hypoxia in the courts. Last week, they filed an appeal with the 11th U.S. Circuit Court of Appeals after a lower court judge rejected Smith’s claims that he had been unfairly singled out for execution and the method violated his constitutional protections against cruel and unusual punishment. Meanwhile, they asked the U.S. Supreme Court for a stay to review whether it’s constitutional for officials to try to execute Smith twice. “It will be only the second time in U.S. history that a state follows through with a second execution attempt after a previous, failed attempt,” the lawyers wrote.

Smith’s legal team is also urging Alabama Gov. Kay Ivey to halt Smith’s execution because of proposed legislation that would give people sentenced to death by judicial override a chance at resentencing. As governor, Ivey has the power to grant Smith clemency. Since taking office in 2017, however, she has overseen 13 executions and rejected all clemency applications submitted by people on death row, including Smith’s.

In an emailed statement to The Intercept on Monday, Ivey said that the current law on judicial override “honors the promises made to the family members of capital murder victims who have long waited for closure and justice.” She was optimistic about Alabama becoming the first state to carry out an execution with nitrogen. “This method has been thoroughly vetted,” she said. “I am confident we are ready to move forward.”

Smith has been nauseous and vomiting, according to a medical report filed by his lawyers. Doctors have prescribed him an anti-nausea medication. A judge on Monday refused to consider how that would weigh on his execution.

If the courts greenlight Smith’s execution, Smith’s spiritual adviser, the Rev. Jeff Hood, will be present in the execution chamber. Hood invited the governor to join him, he said, but has not received a response.

Rieber plans to do what he always does. He’ll join others on death row in beating on the doors around 6 p.m., then try not to pay attention to the clock. It’s customary for people scheduled for execution to give away their belongings. Smith, an artist, gave Rieber two paintings. One, of a red betta fish, Smith painted recently. The other, of puppies, Smith made in the 1990s, when the two men first became friends. The paintings hang opposite one another in Rieber’s cell, an arrangement he hopes will protect them from fading in the sun.

Rieber knows his opinion of Alabama’s turn to nitrogen gas might ring hollow because he’s on death row for killing someone himself. But he shared it anyway. “Every time there’s a change in method, it’s always supposed to be a more humane method,” he said. “We’re waiting for people to understand that it’s not the method that’s humane or inhumane. It’s the killing of other citizens.”

“There’s not a method they can come up with that’s going to make people happy and content with killing.”

This story was supported by a grant from Columbia University’s Ira A. Lipman Center for Journalism and Civil and Human Rights, in conjunction with Arnold Ventures.

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January 2024